Someone is charged with sexual battery with deadly weapon. The reason deadly weapon was added to the charge was BC the victim claimed she was pistol whipped yet the hospital report from the night of the incident claims no injuries. There was no evidence that a deadly weapon was used. This crime is from the year 2000. The fact that deadly weapon was added to the charge makes it a life felony therefore it cannot be protected by the statute of limitations. If deadly weapon can be dropped from the charge the charge would be considered a 1st degree and the s.o.l would have expired. Not to mention the fact that the case came about due to a partial dna database cold hit and the three victins are not able to positivley identify the person charged.
First, it sounds from your question that the State has already filed charges including the deadly weapon. While its always possible for the State to "down-file" the charges to a lesser crime or even dismiss the case, the State may have more evidence to support the deadly weapon enhancement. Additionally, with sexual battery charges, the period of limitation to file charges could vary depending on the facts. For example, when the alleged victim is under the age of 18, the statute of limitation does not begin to run until the victim has reached the age of 18. There are more variations found in Florida Statute 775.15. It sounds like the person charged with the crime should contact a criminal defense attorney to discuss their options; there could be motions to suppress evidence or motions to dismiss the charges, depending on the specific facts.
The information you obtain at this time is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
Can it? Yes. Will it? Who knows?
The "proof" is the victim's statement. Apparently both the cops and the State Attorney believed the victim or they would not have charged the case as they did.
The State is free to accept the victims; statement without any physical evidence to corroborate it; in fact they do this regularly.
The Judge will not do anything about the charge as whether or not a gun was used is not a question of law; rather this is question of fact, and such matters are resolved by Juries, after the evidentiary portion of a trial.
As for the DNA issue, that can be litigated as a pre-trial motion (e.g. asking the Court to suppress it) but I'd bet a digit that, absent some glaring illegality (which you have not proffered - a "cold hit" is not in any way illegal and a "partial" match is also a fact question) the Judge will deny any such request and let the Jury consider and decide that matter along with the rest of the evidence in the case.
The bottom line for "someone" is that s/he is going to either take a plea or go to trial AS CHARGED. If "someone" has a skilled and experienced criminal defense litigator tasked with challenging the State's evidence, surgically cross-examining the complaining witness and making persuasive argument to the Jury then "someone" has a shot at a "Not Guilty" or a "Lesser" verdict. (The Jury could find "someone" guilty of sexual battery with a DW, sexual battery w/o a DW, or any other lesser included offense of the crime charged. Again, this usually directly correlates with the quality of defense counsel).
I hope that I have been helpful in answering your question.
First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.)
Yes it can be taken off, however, since they filed charges, it sounds like the prosecutor believes the victim's version. Since this is a life felony, it is crucial you talk about these details with your attorney.
The charge of sexual battery that you are describing falls within the statute of limitations either way. It sounds like you are referring to a CODIS hit on your DNA gathered when you went to prison and was matched against DNA obtained from the RTK or rape treatment kit. Your facts need more detail. A deadly weapon is used to enhance sexual battery under Florida law. What USUALLY happens is once the DNA hit is established, a photo of you, or someone, is shown to the victim and/or witnesses based on what you (or someone) looked like in 2000. This is done with a DL or some other form of ID. You need an experienced criminal attorney now. An attorney that understands CODIS hits and litigating DNA issues. More facts are needed for me here to do a better analysis.
The charging document, called the information, can be amended by the state attorney at any time. These are obviously serious charges so they are not easily amended. Generally, once the state has filed charges such as these, only an experienced criminal defense attorney would be able to possibly have the charges reduced or dismissed. You should strongly consider speaking to an experienced criminal defense attorney in your area.
You present multiple issues.
The first appears to be your confusion with the inclusion of the deadly weapon in the charging document. Clients are always frustrated to hear that charges may be sustained by witness testimony alone. What I mean is that there need not be corroborative physical evidence, such as the weapon itself, or physical evidence corroborating the use of the weapon (as in medical records supporting the injuries). Now, in instances where the state proceeds with witness testimony alone, there entire case will come down to the credibility of the person making the allegations. If the witness is credible, a jury could convict based in the witnesses's testimony alone, however, if the jury were to question the truth telling of the witness, the defendant would be in a very strong position if obtain an acquittal.
Please also recall that only the State of Florida, through the assistant state attorney, can modify, or change, charges. So, often times, should the case resolve in a negotiated settlement with the State, the prosecutor will agree to plea to charges less than those originally charged, and we creatively call those charges "lesser included offenses."
Yes, the enhancement can be 'taken off' by the State, i.e. reduced by the State, if they believe they cannot prove the charge beyond a reasonable doubt. However, if they proceed to trial, there is no mechanism to remove the weapon enhancement and you must rely on a jury to find the defendant not guilty of that charge with the enhancement.
The advice offered above is general information as to the issues presented and is not meant to specifically apply to any one person's case. The advice does not constitute representation of anyone reading it. If you have further questions on this issue, please contact an attorney personally who can assist you further.
When was the arrest? You did not say.
R. Jason de Groot, Esq. We do not have an attorney-client relationship. I am not your lawyer. The statements I make do not constitute legal advice. Any statements made by me are based upon the limited facts you have presented, and under the premise that you will consult with a local attorney. This is not an attempt to solicit business. This disclaimer is in addition to any disclaimers that this website has made. I am only licensed in Florida.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.What determines Avvo Rating?Experience & background
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline